As the Beliebers of Australia will tell you, tickets for Justin Bieber’s 2017 “Purpose World Tour” were released in Victoria on Wednesday, 12 October at precisely 1pm.  In a frenzy, fans across Victoria were using their employer’s time and resources to purchase (or miss out on) tickets.

Beiber imageAs society becomes increasingly digitalised, it’s now common for employees to use their employer’s internet access for non-work related purposes. Referred to as ‘cyber slacking’, can be a source of frustration for many employers who endeavour to limit recreational internet usage for staff. On the other hand, many employees feel that due to the increasing demands of work life, such as long hours and weekend work, personal internet usage ‘on the job’ should be accommodated. Is workplace flexibility just about leaving work 15 minutes early for an appointment, or does it include personal admin tasks that are done during working hours?

In an age where flexible workplace arrangements are becoming increasingly popular, how far should this leniency stretch, and perhaps more importantly, what is deemed as “appropriate” personal administration? Is personal banking OK? How about perusing the latest shoe sale? Facebook? Trawling Broadsheet in search of Melbourne’s most perfectly poached 63° egg? Reading the newspaper online? Does the scope extend further to include personal printing of documents? Home calls on company phones?

For employers, drawing the line can be difficult. Frustratingly, there are no hard and fast rules on how to deal with employees using work resources for personal reasons. But, employers are entitled to impose and specify reasonable limits. In assessing how to balance these competing interests, it is important to take a practical and realistic approach. Employers are able to maintain some control over employee’s personal admin tasks through workplace policy and lawful and reasonable direction. All organisations are different and time apportioned will depend on the culture of the business.

What is clear is that it is unrealistic to never-say-never to employees in relation to personal admin tasks performed during working hours. Just as employees are increasingly expected to answer emails out of traditional working hours, employees expect employers to allow for some aspects of their personal life to intrude into work hours.

How is your organisation dealing with these challenges? We look forward to hearing from you.

Drafting and enforcing post-employment restraints has a lot in common with good medicine.

It is necessary to prescribe only the “minimum effective dose” – the amount necessary to produce the desired outcome with minimum side effects. Draft a post-employment restraint too narrowly, and it provides no remedy. Draft a restraint too broadly, and toxicity sets in – it won’t be enforceable.

This is particularly important in jurisdictions other than New South Wales where the courts do not have the ability to read down a restraint that would otherwise be unenforceable under specific legislation. The decision of the Supreme Court of Victoria in Just Group Limited v Nicole Peck [2016] VSC 614, published this week, is a salient reminder of the importance of a targeted restraint. The Court decided that while Just Group had a legitimate interest to protect by restraining its former CFO, the wide ranging restraint went further than reasonably necessary and could not be salvaged. The restraint attempted to prevent the CFO from engaging in specified restricted activities for or on behalf of 50 named entities in the retail sector.  It remains to be seen whether this decision will be successfully appealed.

In our series of post-employment protection blog pieces, we tackle each of the main legal and commercial issues involved in drafting and litigating post-employment restraints and unpack our Post-Employment Protections Legal Dimension map. We examine best practice approaches and the tactical issues that need to be thought through.

Please contact any of our partners to discuss the relevant legal touch-points or to access our unique online post-employment restraint solution.

Post Employment Map

Long experience representing many of Australia’s leading employers has taught us that in employment litigation the identity of an employee’s representative (be it a solicitor, union, industrial agent, etc.) is a major factor in how employee litigation runs.The Juggler

Many representatives and firms in the employment market have a well-worn modus operandi. As practitioners, the more clearly we can identify and define the patterns, and develop tactics to anticipate and overcome them, the better the outcome that we can achieve for our client.  For example, the tactics typically utilised by a high volume, fixed-fee employee litigation firm (which we refer to as “The Juggler”) will be different from a firm that seeks to put pressure on an employer by damaging the corporate brand through the litigation process (“The Celebrity”).

A good battle plan should consider game play of not only your opponent, but also their representative. Assessing the state of play early in the litigation may deliver invaluable insights into how your opponent is likely to run.

Our firm has recently published a paper titled ‘The Art of Law’ which explores the six most common litigation models and how to deal with them.

You can download your copy of The Art of Law here.

Please feel free to share with your team.

I very much hope you enjoy reading the paper and the unique insights it provides.


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‘Snapchat is about sharing moments and having fun’ reads the tagline of the mega-app that has the fastest-growing social network in the world. But despite its phenomenal popularity, what potential impact might Snapchat have on your workplace?White phone

If you don’t use Snapchat, here’s a quick overview: it is a mobile-only app estimated to be valued around USD $20 billion and according to Snapchat’s website, on any given day, Snapchat users watch over 10 billion videos with Snapchat reaching around 41% of all 18 to 34 year-olds in the United States. Snapchat is definitely the medium of the moment and utilises “auto-destruct technology” allowing its user to:

  1. Send a photo or video (with filters or text added to it) to one or more contacts for up to 10 seconds (the contact must also have downloaded the Snapchat app in order to receive the photo or video);
  2. Post a video or photo to a ‘story’ which contacts can then view for a period of 24 hours (unless the user deletes it before then); and
  3. Instant message and video call a contact (but the messages will disappear when the user leaves the conversation unless they immediately save the content or take a screenshot).

Snapchat is also being increasingly used for mobile storytelling and organisations can pay to purchase the right to post a story or sponsor a filter that end users can choose to view or use. There are also event-based stories and filters that Snapchat creates. For example, during the Australian Federal Election there were special election filters and users could submit personal photos or video to the official Election Day story that could then be viewed by users. It’s predicted that over the next few years more advertising content will also be included and companies will increasingly use Snapchat for marketing and recruitment purposes.

The reason it is called auto-destruct technology is because after the time specified, the content disappears. Its distinguishing point is its impermanence, unless of course, in the case of a photo, a viewer takes a screenshot, but that requires some serious quick-draw screenshot skills and often a fumble can lead to a black locked screen of shame. As for videos, you can’t save them so once you see them, they disappear. The only other option is to replay content, but you can only do this once a day unless you pay to purchase extra replays. Even then, you can only replay any single item of content once.

Since it is a platform where content is temporary, it’s easy to imagine its appeal to a person who wants to bully or harass others in the workplace. It is much harder to collect evidence in relation to conduct occurring on Snapchat – at least, much harder than Instagram, Twitter or Facebook where content can be easily shared and captured. Snapchat’s fleeting nature potentially encourages more inappropriate and/or high-risk behaviour and people often deliberately use Snapchat to share photos and videos that they wouldn’t dare to post on Facebook or Instagram.

While it is true that all digital content leaves some kind of footprint, in order to access Snapchat content after it disappears, you would have to convince Snapchat to hand over data (which is virtually impossible). The alternative would be to hire a digital forensics team to try and recover some traces of content. But where does that leave employers when someone makes allegations of bullying, sexual harassment or discrimination that have occurred in the workplace via Snapchat and no evidence can be collected to prove that the conduct took place? Unfortunately it will probably result in a situation that is all too common in such scenarios – one person’s word against another.

It is estimated that by 2020, millennials will make up 50 percent of the global workforce. When you consider that Snapchat shapes the communication preferences of this generation, its inappropriate workplace use is something employers should be aware of when updating their social media policies or conducting training. Particularly for younger managers, it may be better to keep Snapchat and work colleagues separate completely. Or maybe this is impossible as more millennials and post-millennials (Generation Z) pour into the workforce.

We welcome any suggestions or thoughts.

Working from homeThere are lessons to be learnt about the future of work in one of my favourite episodes of The Simpsons titled ‘King-size Homer’, from the seventh season which aired over 20 years ago.

As you may recall, Mr Burns tries to get employees at the nuclear power plant ‘in shape’ by leading a workplace exercise program. As expected, however, Homer avoids this by taking advantage of the rule that someone who weighs more than 300 pounds will be classified as disabled and can then work from home. Unsurprisingly, he manages to gain the necessary weight and a computer terminal is installed in the Simpson house to allow him to do his very safety-critical work (monitoring a nuclear reactor!) remotely.

Homer cleverly works out that he can set up a ‘drinking bird’ to operate the computer for him while he is out. He arrives home from a visit to the cinema to find that his assistant bird has toppled over and a nuclear meltdown is imminent.

The Simpsons is notoriously prescient in the stories it tells (see the episode aired in 2000 that portrays Donald Trump as President of the United States …). While ‘King-size Homer’ is now more than 20 years old, the story raises some thought-provoking issues that continue to be relevant for HR and IR practitioners and managers more generally in the current workplace:

  • are workplace health and fitness programs valued by employees?
  • how should disabled employees be accommodated? Do they need to, or should they, be allowed to work from home?
  • which parts of an employee’s role can actually be safely automated?
  • what controls and processes are necessary when allowing employees to work from home?

The last two of these are particularly relevant when thinking about some of the emerging trends around how work might be performed in the future. As discussed in our recent blog ‘The future of work – what are the lessons for employers‘, two of the trends identified were:

  • the use of robotics to perform tasks more quickly, safely and efficiently than humans; and
  • telecommuting and remote working will become the norm (rather than the exception) in some industries.

So what does looking back at an old Simpsons episode tell us about these? There are a couple of valuable points to keep in mind:

  • employers will need to give careful thought to which tasks can be automated and what the ongoing role of humans is in ensuring that those tasks are completed safely and efficiently – it won’t be enough to set up a drinking bird and leave it be. In many cases, human oversight will be required. What training and skills will employees need to make sure the equipment functions correctly and – perhaps more importantly – what can be done to engage with and motivate employees in these situations to ensure that boredom doesn’t set in?
  • employers will need to develop and implement comprehensive and flexible systems to monitor and manage employees who are working from home to ensure that:
    employees are performing the work they have been assigned in a productive, efficient and responsible manner; and
  • the health and safety of those workers is not compromised by the home environment – and, conversely, that the health and safety of other workers in the employer’s workplace is not compromised by those working from home, like Homer did.

Homer is definitely not the shining light for the work of the future – but his behaviour gives food for thought about what we need to think about when structuring working arrangements.

Effective restraints of trade protect businesses which rely heavily on human capital from damage that sometimes can’t be undone. These restraints – usually sitting in an employment contract – can be a key business asset.

Others might think about it as an insurance policy. The capacity to preserve customer connections, protect confidential information and discourage key executives from setting up their own business or moving to a competitor can be critical to information rich businesses operating in a competitive market. As we pointed out in our previous blog piece on post-employment protections The difference between winning and losing restraint litigation is often good housekeeping, ensuring the currency of your restraint provisions is an important exercise in risk management.

Our experience in this area is that one key distinction separates cases where restraints are successfully upheld and those where compromise outcomes are required. When seeking to enforce a restraint, an employer will need to demonstrate to the court there is a protectable interest capable of supporting the restraint. In successful cases, typically, the restraint provision has been drafted quite neatly around the key protectable interests. This is the first limb of the test for enforceability. The scope, duration and geographical operation of the restraint are logically tied to the protectable interest (see our map below). An employer will need to make out each of these elements to meet the second limb of the test.

This success can be attributed to the practice of regularly revisiting the questions of which key executives or employees should be subject to restraints, and how those restraints should operate. Think about their knowledge and relationships (their human capital) as key business assets that have to be protected – or protected against. The yearly promotion, pay rise or management re-shuffle cycles are perfect opportunities to update restraint provisions. Often, this is when operational changes (such as the make-up of roles) become effective, so restraints can be tweaked to align with these changes. A promotion or pay rise can be tied to a new contract or restraint provision.

Instead of adopting a one-size-fits-all approach when an employee first joins the business, employers can increase the likelihood that a restraint will be enforceable by showing it was the subject of specific negotiation during the employment.

14-1621-AU-Post-Employment-Map_R9_PAGE-11-640x452

Video killed the radio star…or did it?Radio star

In its most recent research paper analysing the effects and possible responses to digital disruption, the Productivity Commission observes that with each wave of change “speculation about the effects of technologies often suffers from extreme optimism or pessimism”.

While perhaps raising more questions than it answers, the Productivity Commission focuses on the potential of digital technologies to deliver economic benefits if regulated appropriately.

Automation

It has been predicted that over the next 10 to 15 years, up to 40% of jobs in Australia will be put at risk because of automation. However, the outlook probably isn’t so grim, when you consider that:

  1. automation of tasks has been occurring for centuries, sometimes with surprising effects. The automation of bottle making in the early 1900’s for example not only jolted productivity but also eliminated child labour from that industry.
  2. automation does not necessarily equate with an increase in unemployment because new jobs are often created. For example, higher skilled jobs may be created to complement new technology.
  3. certain jobs are not susceptible to automation – for example, managerial, creative and caregiving roles.
  4. just because a job can be automated, doesn’t mean it will be. As anyone who has attempted to drop off their baggage at an airport knows (or maybe it is just us!) there are times when a machine or computer is no substitute for a human being.

On the other hand, the Productivity Commission acknowledges that automation will replace some jobs. Young people with little experience and low skills and older people in industries subject to major structural change are especially vulnerable to unemployment or underemployment.

The sharing economy

Online sharing platforms like Uber and Airbnb and the spread of mobile technology gives rise to the potential for businesses to buy services on an “as needs” basis. This may also create opportunities for people to work flexibly, control their working hours and supplement their income.

However, the sharing economy remains small and its growth is uncertain. While some commentators have predicted that secure employment will soon give way to an endless series of “gigs” (see our previous blog The sharing Economy – what’s the potential?), the Productivity Commission says that employers will be less likely to hire labour in a range of circumstances including where there is:

  • high interdependence between workers;
  • concern about the expropriation of intellectual property;
  • difficulty controlling the quality of work provided by contractors; and
  • the need for loyalty and/or in-depth knowledge of the business.

The report notes that if the sharing economy does take off, there will be risks to be managed by government – but simply blocking these technologies is not the answer (pardon the pun, but it really is a case of we can’t rewind, we’ve gone too far). Rather, systemic changes to the workplace relations and income support systems may be required to support individuals who engage in the workforce in this way.

Further insights and recommendations can be found in the Productivity Commission’s research paper – Digital Disruption: What do governments need to do?”.

In his book Bargaining with the Devil, Harvard Professor Richard Mnookin probes the challenges and options available when negotiating with “a devil” – anyone you perceive as a harmful adversary. The Devil Brad

“The devil” is usually a traditional “power-based” negotiator who is win/lose orientated, adopts extreme positions, makes small concessions, and uses threats as a key tactic to enhance negotiating leverage. Sound familiar?

Power or “positional-based” negotiations have dominated Australian workplace relations and remain a feature of enterprise bargaining – in a system which, to be fair, legitimises the threat and reality of industrial action.

By contrast “interest-based” negotiations, whilst not new, are rarely seen in pure form in the Australian IR landscape. Interest-based negotiations see the parties identify underlying interests and work collaboratively to formulate solutions. To its credit, the Fair Work Commission is adopting interest-based dispute resolution techniques and is inviting employers and unions to give it a try.

But assuming you are bargaining with “the devil”, what can an employer do to enhance its control over the negotiation? How does it improve its capacity to walk away from the negotiation? How do you deal with the typical power-based tactics?

Look out for more blogs from The Bargaining Coach on this.

Learn more at our Bargaining for Gain workshop Tuesday, 19 October 2016.

Work imageWhat will work look like in the future and what lessons can employers take from that? Two recent reports have identified the trends in the way in which we will work in Australia over the next 20 to 40 years.

In the first, Tomorrow’s Digitally Enabled Workforce, the CSIRO looks at what they describe as six ‘megatrends’ for jobs and employment markets over the coming twenty years:

  1. The use of robotics to perform tasks more quickly, safely and efficiently than humans;
  2. The rise of digital technology and the new world of ‘platform economics’, which mean that jobs of the future are likely to be more flexible, agile, networked and connected;
  3. The need for many individuals to use entrepreneurial skills to create their own job;
  4. An ageing population, more diverse workforces and more diverse cultural backgrounds;
  5. A higher bar for skills required for entry-level positions; and
  6. Continued growth in the service industries, in particular education and healthcare – requiring social interaction skills and emotional intelligence.

The second, the NSW Government’s ‘Future State NSW 2056’ report, examines trends in workforce participation, living arrangements and productivity and projects them over the next 40 years. The report foreshadows a number of key developments in relation to the jobs of the future. These are remarkably similar to those identified in the CSIRO report:

  1. The decline in the ‘producer industries’ (manufacturing, construction and agriculture) in Australia and the continued rise of the services sector (health and professional services, such as engineers, computer designers, accountants, lawyers and scientists);
  2. Future sources of employment being in arts, engineering, AI, robotics, nanotechnology, 3D printing, genetics and biotechnology;
  3. The rapid growth of the peer-to-peer and freelance employment markets – which often means the outsourcing of work to specialist contractors and consultants, who are likely to work from home or use shared facilities;
  4. Workers having ‘portfolio careers’ (multiple jobs with multiple employers on a part-time basis); and
  5. Telecommuting and remote working becoming the norm (rather than the exception) in some industries.

While many of these trends are well known, they are potentially still very confronting for many workers – and businesses too. But what lessons can employers take from these trends? I think there are three:

  • Work will not involve, and workers will expect their jobs will not involve, just ‘doing’. The focus for the design of the jobs of the future will be around how workers can have creative input – in other words, workers will expect to use their abilities to ‘think’. Organisations will need to ensure that jobs create intellectual stimulation and challenge. Any process work will be done (if it is not now) autonomously by technology.
  • Workers will not have an expectation of a lengthy period of employment or engagement with one particular organisation, but they will have high expectations of the learning and development that they can obtain from that organisation. This will be a critical area of focus for organisations wanting to be leaders in their field – because it will be about finding the best talent, rather than the best talent finding you.
  • Organisations will have to develop ways of working with their workforce that take into account the diversity of the workforce and the diversity in the ways in which people will perform work – including by operating their own businesses. Your engagement with those who provide ‘labour’ to the organisation will need to be continuously innovative so that you can build resilience to ongoing rapid change.

Are we in the beginnings of a cyclical upswing in industrial action in Love me tender - option 3Australia? And if so, what does it mean for those involved in competitive tender processes?

Data from the ABS indicates that the last spike in industrial disputes occurred in September 2012, with around 110,000 working days lost. The sense that there may be another spike coming correlates with the enterprise agreement life cycle, as enterprise agreements typically expire after 3 or 4 years. Many businesses are currently engaged in, or planning for, negotiations for the next round of agreements.

In this climate, the potential impact of industrial action is particularly troubling for those employers who engage in competitive tender processes in order to win work. Organisations who put work out to tender are increasingly adopting sophisticated assessment criteria, which include many aspects of the tenderer’s business strategy – rather than just looking at price. One of the criteria that often has a high priority is how industrial relations risk (especially the risk of industrial action) will be managed and reduced. There is an expectation, if not a requirement, that tenderers will have a comprehensive plan to minimise the impacts of industrial action, and that innovative solutions will be designed by tenderers for that purpose.

Principals often award tenders for many years which means that the management of industrial relations risk requires tenderers to ‘play the long game’ in managing and pre-empting industrial action risks that might arise during the course of the contract.

In this context, tenderers need to think deeply about how they best position themselves in a competitive tender process. This requires careful consideration of the options that are available to get the work done. Traditional models of engaging employees might no longer be enough to convince the principal that the tenderer is trying to minimise employment risk. Demonstrating capability and innovation in managing industrial relations risk means looking afresh at workforce models, including:

  • creating solutions to the problem of enterprise agreements expiring during the course of a project;
  • rethinking reliance on one ‘supplier’ of labour and considering how multiple sources of supply might be engaged – to help minimise disruption to, or delay in, labour supply that might arise from industrial action; and
  • outsourcing some of the IR risk to other entities or stepping outside the traditional workforce engagement models.

While you might wonder if the current industrial landscape is really that tumultuous, or you may feel a touch of schadenfreude at the industrial action going on elsewhere (confident that your ship is secure), now is the time to think proactively about your system for managing industrial relations risk to differentiate your offer from competitors.